[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



 
 HOUSE RESOLUTION ON THE APPROPRIATE ROLE OF FOREIGN JUDGMENTS IN THE 
        INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES

=======================================================================

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                                   ON

                               H. Res. 97

                               __________

                             JULY 19, 2005

                               __________

                           Serial No. 109-40

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov



                                 ______

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                      STEVE CHABOT, Ohio, Chairman

TRENT FRANKS, Arizona                JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee        JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama              ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana          MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin                CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida

                     Paul B. Taylor, Chief Counsel

                      E. Stewart Jeffries, Counsel

                          Hilary Funk, Counsel

                 Kimberly Betz, Full Committee Counsel

           David Lachmann, Minority Professional Staff Member


                            C O N T E N T S

                              ----------                              

                             JULY 19, 2005

      Hearing on H. Res. 97, expressing the sense of the House of 
 Representatives that judicial determinations regarding the meaning of 
the Constitution of the United States should not be based on judgments, 
  laws, or pronouncements of foreign institutions unless such foreign 
   judgments, laws, or pronouncements inform an understanding of the 
       original meaning of the Constitution of the United States


                           OPENING STATEMENT

                                                                   Page
The Honorable Steve Chabot, a Representative in Congress from the 
  State of Ohio, and Chairman, Subcommittee on the Constitution..     1
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Ranking Member, Subcommittee on the 
  Constitution...................................................     3
The Honorable Tom Feeney, a Representative in Congress from the 
  State of Florida, Subcommittee on the Constitution.............     4

                               WITNESSES

Mr. Viet D. Dinh, Professor, Georgetown University Law Center
  Oral Testimony.................................................     7
  Prepared Statement.............................................     9
Mr. M. Edward Whelan, III, President, Ethics and Public Policy 
  Center
  Oral Testimony.................................................    11
  Prepared Statement.............................................    14
Mr. Nicholas Q. Rosenkranz, Professor, Georgetown University Law 
  Center
  Oral Testimony.................................................    28
  Prepared Statement.............................................    30
Ms. Sarah Cleveland, Professor, University of Texas School of Law
  Oral Testimony.................................................    36
  Prepared Statement.............................................    38

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Tom Feeney, a Representative 
  in Congress from the State of Florida..........................    57
Prepared Statement of the Honorable Bob Goodlatte, a 
  Representative in Congress from the State of Virginia..........    58
Prepared Statement of Public Citizen's Global Trade Watch........    59


 HOUSE RESOLUTION ON THE APPROPRIATE ROLE OF FOREIGN JUDGMENTS IN THE 
        INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES

                              ----------                              


                         TUESDAY, JULY 19, 2005

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 4:05 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Steve 
Chabot (Chair of the Subcommittee) presiding.
    Mr. Chabot. The Committee will come to order.
    Good afternoon. I would like to thank everyone for coming. 
This is the Subcommittee on the Constitution's hearing on H. 
Res. 97.
    Today we are examining the appropriate role of foreign 
judgments in the interpretation of the Constitution of the 
United States. This hearing is important for a number of 
reasons, but, most importantly, to make clear from this 
Subcommittee's perspective that the Supreme Court's reliance, 
or any court's dependence for that matter, on foreign judgments 
in the interpretation of our Constitution has no place. I would 
like to thank the distinguished gentleman from Florida, Mr. 
Feeney, for his continued work on H. Res. 97.
    We have a distinguished panel before us today, and I look 
forward to their testimony before this panel. I know that you 
all have busy schedules, and I know that Members of this 
Subcommittee join me in thanking you for taking the time to 
share your expertise.
    This hearing is timely as our attention is turned to the 
activities unfolding across the street. As the nomination 
process moves forward, I am reminded of article VI of the U.S. 
Constitution, which states that ``This Constitution, and the 
Laws of the United States which shall be made in Pursuance 
thereof . . . shall be the supreme Law of the Land; and the 
Judges in every State shall be bound thereby, any Thing in the 
Constitution or Laws of any State to the Contrary 
notwithstanding. The Senators and Representatives . . . and all 
executive and judicial Officers, both of the United States and 
of the several States, shall be bound by Oath or Affirmation, 
to support this Constitution.''
    Article VI and the oath that we all, including judicial 
officers, take as representatives of our Federal system of 
government, binds us to uphold and protect the Constitution of 
the United States of America.
    Unfortunately, over the last several years, we have 
witnessed a trend, a dangerous trend, I believe, in which the 
judiciary has strayed from its oath and duty to uphold the 
meaning of the Constitution. By looking to and relying on the 
decisions of foreign courts in the interpretation of the 
Constitution of the United States, the judiciary not only is 
undermining the vision of our Founding Fathers but is chipping 
away at the core principles on which this country was founded, 
chipping away at our Nation's sovereignty and independence.
    When our country declared its independence from Britain, 
the Founders were very aware and concerned that King George had 
``combined to subject us to a jurisdiction foreign to our 
Constitution and unacknowledged by our laws.'' and, in drafting 
the Constitution, Alexander Hamilton stated in Federalist No. 
78 that ``It can be of no weight to say that the courts, on the 
pretense of a repugnancy, may substitute their own pleasure, or 
anyone else's, to the constitutional intentions of the 
legislature,'' making clear in the Constitution that there is 
no place for the use of Federal opinion.
    Despite our history, the vision of our Founding Fathers, 
and the clear mandates set forth in the Constitution, the 
judiciary has continued to rely, I think, and value foreign 
opinion in the interpretation of the United States 
Constitution. This past March 24, the Supreme Court in Roper v. 
Simmons cited the practice of other countries in striking down 
the death penalty, concluding that ``It is proper that we 
acknowledge the overwhelming weight of international opinion 
against the juvenile death penalty.'' in looking to the 
international consensus, Justice Kennedy clearly neglected to 
look to the consensus citizens of the 20 States that continued 
to allow the practice until March.
    This is not an isolated case. In 2003, in Lawrence v. 
Texas, the Court cited a decision by the European Court of 
Human Rights as a lack of world consensus on the illegality of 
such conduct.
    In 2002, in Adkins v. Virginia, the Court referenced the 
views of the European Union's brief filed with the Court in a 
footnote to its decision to find death sentences for mentally 
retarded individuals unconstitutional.
    Our country has evolved to where there is enough precedent 
and enough corpus juris which a court can use to interpret and 
determine whether the laws of Congress or of the several States 
are permissible under the confines of our Constitution. 
Furthermore, our Constitution is clear as to its supremacy and 
to the role of the judiciary in upholding this constitutional 
tenet.
    Americans deserve certainty, most of all, from the 
principles on which this country was founded. They deserve to 
know the meaning of our Constitution as intended by our 
legislatures under our body of law, not as intended by the 
world. H. Res. 97 is necessary now more than ever to remind the 
Court and all representatives, elected and appointed, who took 
an oath to uphold their obligation, both to the Constitution, 
and to the American people.
    I look forward to hearing from our panel of witnesses on 
this issue this afternoon and on H. Res. 97. And at this time, 
I will yield to the gentleman from New York, Mr. Nadler, the 
Ranking Member of this Committee for the purpose of making an 
opening statement.
    Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, I want 
to join you in welcoming our witnesses today. As we await the 
President's nomination of a new justice of the Supreme Court, 
it is important that this Committee consider the role of the 
judiciary in our system of Government. I hope that the Senate 
will, in considering the lifetime appointment of a Supreme 
Court justice, exercise its constitutional duty of advice and 
consent and not act merely as a rubber stamp.
    Our main concern, Mr. Chairman, is that attacks on the 
judiciary in this Committee have crossed the dangerous and 
inappropriate line between acceptable commentary and response, 
and potentially destructive attempts to destroy the separation 
of powers, which has been one of the foundations of our 
freedoms.
    Congress may certainly change legislation if we are not 
satisfied with the Court's interpretation of the law. Congress 
may also choose not to exercise powers the Court has said we 
have under the Constitution. In rare and extraordinary 
circumstances, we can even initiate an amendment to the 
Constitution. We may not always agree on policy, but these are 
all powers given to Congress under the Constitution.
    This Committee and this Congress, however, have begun to 
stray from the appropriate to the dangerous. While I realize 
that some issues before the Court arouse strong feelings, 
Congress has a duty to set a reasoned example to the Nation. 
Lambasting the courts as unelected judges--if that were not the 
design of the Government--undercuts the protection of our 
liberties.
    This Subcommittee, despite its name, has never taken the 
time to look into the Court's long and worrisome record of 
using the 11th amendment contrary to its intent, limiting the 
reach of the commerce clause in undercutting Congress' powers 
to enforce the 14th amendment in ways that have undercut our 
civil rights laws. The outrage has sometimes proved selective.
    Threats of impeachment, attempts to eliminate Federal court 
jurisdiction to rule on certain select issues, even an 
amendment to the budget a few weeks ago, to the appropriations 
bill to say no funds appropriated herein to the Justice 
Department may be used to enforce a specifically named decision 
of a Federal district court, ex parte communications with 
Federal judges concerning their actions in a particular 
proceeding, threats or subpoenas in cases where Members of this 
Committee disagree with a certain result, and the even 
inflammatory comments approving of violence against judges do a 
disservice to the foundations of our constitutional system of 
Government.
    Today we examine the use of non-U.S. sources in judicial 
decisions. I continue to believe that this is a big fuss over 
nothing. No case has ever turned on a foreign source. No 
foreign source has ever been treated as binding, and this 
phenomenon of citing foreign sources is certainly nothing new. 
What is really dangerous is the threats that accompany our 
deliberations, and the suggestion that Congress may exercise 
its power to tell the courts what is or is not appropriate, 
what is or is not an appropriate way to consider a complex 
issue. Our courts should not decide important issues with 
blinders anymore than should Congress.
    I would also remind my colleagues who voted for NAFTA, who 
are contemplating voting for DR-CAFTA, that our sovereignty is 
far more threatened by the remedies available to foreign 
corporations and governments because of NAFTA, and 
prospectively because of CAFTA, than because of anything that 
has appeared in these court decisions, whether it is 
international bodies telling us which laws we cannot--we can 
and cannot have or enforce, or foreign corporations seeking 
remedies against our businesses. And if our Members are really 
concerned about threats to our sovereignty, they will look at 
these foreign agreements which cede sovereignty to World Trade 
Organization tribunals as to which of our own laws we can 
enforce and which we cannot.
    I welcome our witnesses, and I look forward to hearing 
their testimony. I would also ask unanimous consent that 
Members have 5 days to revise and expand their remarks and 
include additional materials in the record.
    I thank you, Mr. Chairman, and I yield back.
    Mr. Chabot. Thank you. Without objection, so ordered.
    The gentleman from Florida, Mr. Feeney, who is one of the 
two principal sponsors of this legislation. If he would like to 
make a brief opening statement, I am sure the Committee would 
welcome that.
    Mr. Feeney. I thank the Chairman. But before I do that, I 
would like unanimous consent to place into the record a 
statement by our good colleague, Congressman Bob Goodlatte, who 
is cosponsor of the Feeney-Goodlatte resolution.
    Mr. Chabot. Without objection so ordered.
    Mr. Feeney. Thank you, Mr. Chairman, again for holding a 
hearing on a very important issue.
    Six Supreme Court U.S. justices have approvingly been 
described by Professor--actually Yale Law Dean Harold Koh--as 
transna tionalists. They have increasingly expressed 
essentially disappointment in our own U.S. Constitution as 
originally written by the Drafters and Framers of our 
Constitution by importing foreign laws, fads, constitutions, 
and political polls to somehow create or reinterpret against 
their own 20- or 10-year-old precedence on the bench from the 
U.S. Supreme Court to reinterpret the meaning of our very 
Constitution.
    With disturbing frequency they have looked at and looked 
all over 191 nations recognized by the United States State 
Department for some favorable or agreeable laws that they could 
use to justify their result-oriented approach.
    So I want to thank Mr. Goodlatte and many others on this 
Committee. We hope to have a great civics debate as part of 
this discussion as we tee it up in the United States Senate in 
terms of what the appropriate role of the United States justice 
ought to be.
    If we are going to have a Republican government small arm--
meaning that people get to elect policymakers--I think every 
American, from third grade to the end of their retirement 
years, ought to understand what the appropriate role of the 
Justice is.
    That is, in my view, to interpret the original meaning of 
the Constitution and to interpret the laws as intended by the 
law-givers in the States and the Federal--at the Federal level.
    In the Declaration of Independence, Jefferson and the 
Founders explained the rationale for war against and separation 
from Britain. Among other things, they alleged that the King 
had combined with others to subject us to a jurisdiction 
foreign to our Constitution and unacknowledged by our laws.
    Yet it appears that is exactly what is happening to the 
extent that we have Supreme Court Justices relying on 
contemporary fads, following polls, laws, et cetera, in order 
to somehow reinterpret the United States Constitution. The most 
recent alarming decision was in Roper v. Simmons. Again, the 
United States Supreme Court undermined its own precedent. This 
is not something that they were looking as comparative analysis 
or thought that it would be interesting to make note.
    You know, I would say to my friend from New York that 
indeed they did rely at least in part on foreign laws to change 
their own precedent with respect to whether or not people under 
the age of 18 can ever be subject to the death penalty in 
America.
    Never mind that a majority of the States that have the 
death penalty, elected legislatures by the people, allow a 17-
year-old murderer under certain circumstances to be put to 
death. In Florida, over 70 percent of the people have amended 
our Constitution to allow for the egregious circumstances for 
people under the age of 18.
    So with one fell swoop, based in part on foreign law, we 
have the United States Supreme Court--or a majority anyway--
throwing out constitutional referendum in Florida and throwing 
out the laws of a significant portion of our States.
    They did the same thing in Adkins, overturning their own 
precedent--democratically elected policymakers' decisions.
    They did the same thing in Lawrence v. Texas on the issue 
of whether or not the State of Texas had the right to regulate 
sodomy.
    By the way I won't necessarily quarrel with the outcome of 
any of their decisions. It's exactly the fact that they relied 
on international laws, fads, institutions, constitutions, et 
cetera.
    It is important to read what the Feeney-Goodlatte 
resolution does. I would say to Professor Cleveland, we 
certainly welcome your comments. I am glad that you are here 
today because this is an interesting case. I was surprised, 
when I found and read your testimony, that I agree with a great 
deal of what you have to say. Indeed, it's often appropriate to 
cite what is going on in other countries.
    In interpreting our Constitution, for example, it would be 
hard to understand the administration of powers if you hadn't 
referred to Montague, who Madison says is essentially the 
founder of the concept of separation of powers. Our Founders 
were terribly familiar with everybody from Plato, Cicero, Lock, 
Mill, Blackstone, for a definition of the words ``law of 
nations.'' one of the problems we have here today is people are 
confusing the term ``law of nations,'' which is in article I of 
the Constitution, with international law. These are very 
different things.
    I would refer you to Mr. Blackstone's description of what 
the law of nations are. It is actually something that doesn't 
change over time; God-given rights like Jefferson referred to 
in our Declaration.
    International law changes a great deal. It does not 
prohibit, by the way, anytime there is legislative history 
involved in citing foreign authorities.
    If we decide to adopt the German pension system, for 
example, we debate the German pension system, we want to adopt 
a Social Security system designed on Bismarck's system which, 
in fact, to some extent happened--it may be terribly important 
for the courts to look at the history in Germany of the pension 
system that Congress adopted.
    The legislative history is always appropriate. Treaty, 
maritime law, all mentioned in the Constitution, are always 
appropriate for the courts to recognize.
    What Feeney-Goodlatte prohibits is overturning 
constitutional precedent, is creating or finding new 
constitutional rights or privileges based on contemporary post-
constitutional law.
    With that, I think that there is no more important question 
to ask the nominee that we expect at any time now, and all 
future nominees in terms of their jurisprudential approach. It 
seems to me that it is appropriate for nominees to comment on 
this. After all, we have Judge Scalia, Judge Breyer, Judge 
Ginsburg, and Judge O'Connor at a minimum, not only in their 
opinions, but off the bench, debating the legitimate use of 
international law to determine our own constitutional rights.
    I will end, Mr. Chairman, by suggesting that when courts do 
what I have suggested they have done in the three cases I have 
cited, they in my view violate article I, article II, article 
III, article IV, article V and article VI. Perhaps we will get 
into that. I can't find anything in article VII that the judges 
are violating with respect to their oath when they engage in 
this procedure. And I yield back to the Chairman.
    Mr. Chabot. Thank you very much. We have a very 
distinguished panel with us here this afternoon. We are anxious 
to get to them. I would like to introduce them at this time.
    Our first witness will be Mr. Viet Dinh. Mr. Dinh currently 
is a professor of law at Georgetown University Law Center and 
founder and principal of Bancroft Associates. His credentials 
are too numerous to list, but I will note that he previously 
served as U.S. Assistant Attorney General for Legal Policy from 
2001 to 2003, served as Special Counsel to the U.S. Senate 
Whitewater Committee, and as Special Counsel to Senator Pete 
Domenici for the impeachment trial of the President. He was a 
law clerk to both Judge Lawrence H. Silberman of the U.S. Court 
of Appeals and to U.S. Supreme Court Justice Sandra Day 
O'Connor. It is very nice to see you again, Professor.
    Our second witness is Mr. Edward Whelan, and Mr. Whelan is 
the President of the Ethics and Public Policy Center, where he 
directs the Center's program on the Constitution, the Courts 
and the Culture. Prior to joining EPPC, Mr. Whelan worked at 
the Department of Justice where he served as the Principal 
Deputy Assistant Attorney General for the Office of Legal 
Counsel, starting the position right before September 11th. Mr. 
Whelan previously served as General Counsel to the U.S. Senate 
Committee on the Judiciary. He is a former law clerk to both 
Judge J. Clifford Wallace on the U.S. Court of Appeals for the 
Ninth Circuit and for U.S. Supreme Court Justice Antonin 
Scalia. We welcome you here this afternoon.
    Our third witness is Nick Rosenkranz, who also worked in 
the Department of Justice's Office of Legal Counsel, serving as 
an Attorney-Advisor. Prior to joining the Department of 
Justice, Mr. Rosenkranz served as a law clerk for both Judge 
Frank Easterbrook on the U.S. Court of Appeals for the Seventh 
Circuit and for U.S. Supreme Court Justice Anthony M. Kennedy. 
We welcome you here this afternoon, Mr. Rosenkranz.
    Our fourth and final witness is Sarah Cleveland, Marrs 
McLean Professor in Law at the University of Texas School of 
Law. Ms. Cleveland is a former Rhodes Scholar and a law clerk 
to U.S. Supreme Court Justice Harry Blackmun. Her interests 
include international human and international labor rights, 
foreign affairs and the Constitution, and Federal civil 
procedure. She is the author of many publications, including 
``Powers Inherent in Sovereignty: Indians, Aliens, Territories, 
and the Nineteenth-Century Origins of Plenary Power in Foreign 
Affairs,'' Texas Law Review, 2002. We thank you very much for 
being here this afternoon, Ms. Cleveland.
    For those who have not testified before this Committee 
before, let me explain very briefly our lighting system. We 
have what is called the 5-minute rule. You basically have 5 
minutes to testify. Everyone, including Members up here, are 
limited to 5 minutes.
    We have the system there, the green light will be on for 4 
minutes, the yellow light, we hope--it wasn't working in the 
last hearing we had a few hours ago, we hope it is working now. 
The yellow light is supposed come on for 1 minute. And then the 
red light, we would ask you to wrap up as close as possible 
when that light come on. We will give you a little leeway but 
we would ask you to keep as close to that as possible.
    It is the practice of this Committee to swear in all the 
witnesses appearing before it. So if you would all please rise 
at this time and raise your right hand.
    [Witnesses sworn.]
    Mr. Chabot. Thank you very much. All witnesses have 
answered in the affirmative.
    We will begin with you this afternoon, Professor Dinh. You 
have 5 minutes.

             TESTIMONY OF VIET D. DINH, PROFESSOR, 
                GEORGETOWN UNIVERSITY LAW CENTER

    Mr. Dinh. Thank you very much, Mr. Chairman, and Members of 
the Committee. Thank you for the opportunity to be here again 
to talk about this important topic raised by House Resolution 
97: When, if ever, is it appropriate for American courts to 
consult foreign courts of law in an interpretation of purely 
American law, particularly the United States Constitution?
    Let me start, as Mr. Feeney did, by listing the various 
areas in which, in my opinion, consideration of foreign sources 
of law would not only be appropriate but I think essential in 
the decisionmaking process of U.S. courts.
    First, obviously, where the case turns on the meaning of a 
foreign law. For example, in the case 2 years ago of J.P. 
Morgan v. Traffic Stream. Second where the case turns on the 
actions and wishes of foreign tribunals. For example, again, on 
the same term, the case of Hoffman-LaRoche v. Empagran. Third, 
where the case turns on the existence of meaning of the law of 
nations. Again, from the same term, Sosa v. Alvarez-Machain. 
And also when a court is interpreting a treaty, it is natural 
to look to the interpretation of that treaty by the courts of 
nations, who are also signatories to that treaty. Olympic 
Airways v. Husain, also in the same term, to which I return.
    Where foreign sources of law is not relevant and 
appropriate, however, is in the interpretation of the United 
States Constitution. There are several reasons for this. The 
Chairman and Mr. Feeney have gone through them in length. I 
just want to summarize here my testimony.
    First is the obvious fact that foreign courts are not 
interpreting the United States Constitution. How foreign courts 
interpret, for example, the European Convention on Human Rights 
tell us very little what a different document, that is our U.S. 
Constitution, means. It may well be, as many Justices have 
observed, that foreign judges often look to the United States 
Supreme Court precedent in interpreting constitutions and 
treaties, modeled after the United States Constitution. This is 
perfectly legitimate and normal; just as U.S. judges do and 
should look to the foreign antecedents to the U.S. Constitution 
to discern its meaning. But there is very little reason why the 
meaning of the U.S. Constitution should be informed by the 
views, the post-constitutional views, of contemporary foreign 
judges interpreting their own laws and constitution.
    Second is democratic legitimacy. It is okay to consider 
foreign interpretations of a common treaty, say the Warsaw 
Convention, not only because the courts are interpreting the 
same document. Rather, it is also okay because the democratic 
process has said that it is, implicitly or explicitly. 
Congress, in ratifying a treaty, has the opportunity to decide 
whether or not to involve the Federal judiciary at all by 
making a treaty self-executing or not. Even where Congress has 
given a role to judges in interpreting and enforcing a treaty 
by making it self-executing, Congress can specify the terms of 
such judicial involvement through reservation and other 
statutory language. In fact, the preamble to some treaties, 
again such as the Warsaw Convention, expressly recognize that 
intent and purpose to provide uniform legal principles or a 
uniform manner of interpretation.
    By contrast, in cases of purely American law, there are no 
corresponding democratic authorization of nor legislative 
checks on the reliance on foreign judgments. There is simply no 
way that I or any other citizen, or you as elected 
representatives of us, can affect how a foreign court would 
view a U.S. Constitutional issue.
    Thirdly and finally, there is simply a matter of consistent 
methodology. The reason why I bring up the Warsaw Convention 
and the case of Olympic Airways v. Husain so often in this 
brief statement is the fact that nobody doubts that 
consideration of foreign judgments in that context is 
legitimate. Yet a majority of the Supreme Court in deciding the 
matter neglected to even cite the fact that two other signatory 
nations have interpreted the exact same convention, deciding 
the exact same issue in a diametrically opposed way from which 
the Supreme Court had come to its conclusion.
    In dissent, Justice Scalia threw up his hands and said, 
here I have been saying for the last 3 or 4 years we shouldn't 
consider foreign laws in illegitimate instances. In the one 
instance where it is legitimate, you can probably ignore the 
relevant judgment of foreign courts.
    The reason for this, I think one of the explanations for 
this, is that we as American lawyers, and especially as 
American judges, are just not very good at doing foreign laws. 
We are not steeped in their tradition, we do not know the 
interpretation. We do not know the entire body of law of a 
particular nation or of a particular organization or of a 
particular convention. So what is left is that we would cherry-
pick those sources of law which would tend to support our point 
of view, whether it be in a brief or in a particular opinion.
    In the short run, that may ostensibly add to some ethereal 
legitimacy to or persuasiveness to that particular opinion or 
brief, but I would contend that in the long run and not very 
long either, but just a little bit of reflection would indicate 
the underlying illegitimacy and lack of reliability of such 
reliance.
    I will close there and take any further questions. Thank 
you very much.
    Mr. Chabot. We appreciate it, Professor.
    [The prepared statement of Mr. Dinh follows:]

                   Prepared Statement of Viet D. Dinh

    Mr. Chairman and Members of the Subcommittee,
    Thank you very much for this opportunity to comment on House 
Resolution 97 and the very important constitutional issues raised by 
the consideration and application of foreign judgments to the 
interpretation of United States law, and particularly upon 
interpretation of the United States Constitution.
    The issue raised by today's hearing is indeed an important one: 
when, if ever, U.S. courts should consider or rely upon the decisions 
of foreign courts in the interpretation of American law. The issue is 
particularly important at this time, as in recent years it appears our 
courts are more often referring to foreign laws and foreign court 
decisions to justify the conclusion reached in a particular case. 
American courts often refer to foreign law even in cases involving 
interpretation of a purely domestic law. Thus, unfortunately, it 
appears our courts, most noticeably the Supreme Court, are looking to 
foreign decisions and legal principles in the wrong instances.
    The consideration of foreign court decisions is not always improper 
or inappropriate. Where the law to be construed is a treaty, the 
interpretations given that treaty by other nations that are parties to 
the agreement are certainly relevant; our courts should consider these 
precedents in formulating their own interpretations of the same legal 
provision. Where, however, the law being interpreted is solely 
domestic, American law, and particularly where the interpretation is of 
a constitutional provision, decisions by foreign tribunals on a 
seemingly similar issue have no relevance. The foreign forum was not 
tasked with interpreting and applying U.S. law, but rather has the 
responsibility for applying its own laws.
    Despite what I conclude is a clear and necessary distinction 
between when the consideration of foreign judgments is appropriate, 
many Justices of the Supreme Court have made it clear that the trend of 
considering foreign judgments is not coming to an end, but rather is 
expanding. It is for that reason that I believe this is such an 
important topic.
    When the court is called upon to interpret a treaty or agreement 
among nations, the court must ``accord the judgments of our sister 
signatories `considerable weight.' '' Olympic Airways v. Husain, 540 
U.S. 644, 658 (2004) (Scalia, J., dissenting) (quoting Air France v. 
Saks, 470 U.S. 392, 404 (1985)). For example, in applying provisions of 
the Warsaw Convention, the Supreme Court has, in many instances, 
carefully considered the case law of parties to that treaty. See, e.g., 
El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 173-74 
(1999); Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 550-51 (1991); 
Air France, 470 U.S. 392. But see Olympic Airways, 540 U.S. 644.
    Unfortunately, in this area, where consideration of the judgments 
of foreign courts has significance, our courts have not consistently 
looked to such judgments. In at least one instance, foreign decisions 
were not considered at all by the majority. See Olympic Airways, 540 
U.S. 644. This failure to consider the decisions of the courts of other 
countries who are parties to the relevant agreement represents a 
failure to follow a well-established legal principle--to ensure, to the 
extent possible, the consistent interpretation and application of a 
single law.
    Where two nations have jointly adopted a single law, it is 
consistent with accepted legal principles that an attempt should be 
made to provide for consistent interpretations of that law. ``Foreign 
constructions are evidence of the original shared understanding of the 
contracting parties. Moreover, it is reasonable to impute to the 
parties an intent that their respective courts strive to interpret the 
treaty consistently.'' Id., at 660 (Scalia, J., dissenting).
    The legitimacy of considering foreign interpretations of a common 
treaty derives not simply from the technicality that the courts are 
interpreting the same document. Rather, it stems also from the 
interaction with the democratic process. First, Congress in exercising 
its constitutional authority to ratify a treaty has the opportunity to 
decide whether or not to involve the judiciary at all by making the 
treaty self-executing. Even where Congress has afforded judges a role 
in enforcing and interpreting a treaty, it can specify the terms of 
such judicial involvement through reservations and other statutory 
tools. In fact, the preamble to some treaties, such as the Warsaw 
Convention, expressly recognize that intent and purpose--to provide 
uniform legal principles or a uniform manner of regulation. Convention 
for the Unification of Certain Rules Relating to International 
Transportation by Air preamble, Oct. 29, 1934, 49 Stat. 3000, 3014, 
T.S. No. 876 (reprinted at 49 U.S.C. Sec. 40105).
    By contrast, in cases of purely American law, there are no 
corresponding democratic authorization of nor legislative checks on the 
reliance on foreign judgments. There is simply no way that I or any 
other citizen can affect how a foreign court would view a particular 
issue.
    It is our own courts and not foreign courts that are tasked with 
interpreting our laws. The American judiciary is not independent of the 
Constitution and the laws of this country. Indeed, it is from the 
Constitution itself that any authority to interpret our laws vests in 
the judiciary. The Constitution does not separate and isolate us from 
other countries. It contains the treaty power, recognizing the need to 
cooperate and build relationships with other countries. It also does 
not limit or prevent our own lawmakers from looking to foreign laws and 
foreign court judgments in drafting, debating and developing our own 
laws.
    Though most recent consideration of foreign legal trends has 
occurred in connection with social issues, courts could conceivably 
extend this practice to use foreign authorities when adjudicating other 
fundamental issues, including our approach to our own national defense. 
For example, we cannot tolerate a court's invalidating initiatives in 
the War on Terror on the grounds that some other nations view those 
actions as incorrect or unwise. To give weight to foreign decisions on 
matters of American concern opens the door for consideration of foreign 
decisions on all matters, even those that should ultimately be matters 
for us alone.
    Constitutional rights exist because of the Constitution itself. 
They do not derive from any source external to that document. It is 
through this contract between our government and our citizens that the 
government has the authority to enact laws and the courts have the 
authority to interpret them. The Constitution tasks our country's 
courts with the interpretation of the document. It is not within the 
purview of any foreign tribunal to interpret the meaning of any 
provision of our Constitution. Foreign views of how our Constitution 
should be interpreted should provide no instruction to our own courts; 
nor should our courts eschew their own responsibility of interpretation 
by relying instead on the views of foreign jurists. In the same way 
that the parties to a treaty should respect each other's 
interpretations of those mutually binding agreements, so too should 
American courts look to the understanding (as set forth in its text) 
the document was given by the actual parties to it--i.e., the American 
people at the time of its drafting and ratification.
    The recent reliance on international sources raises issues of 
sovereignty and separation of powers, and ultimately the dilution of 
the power of the people in this country. As Justice Scalia explains,

        We must never forget that it is a Constitution for the United 
        States of America that we are expounding. The practices of 
        other nations, particularly other democracies, can be relevant 
        to determining whether a practice uniform among our people is 
        not merely a historical accident, but rather so implicit in the 
        concept of ordered liberty that it occupies a place not merely 
        in our mores but, text permitting, in our Constitution as well. 
        But where there is not first a settled consensus among our own 
        people, the views of other nations, however enlightened the 
        Justices of this Court may think them to be, cannot be imposed 
        upon Americans through the Constitution.

Thompson v. Oklahoma, 487 U.S. 815, 868 n.4 (1988) (Scalia, J., 
dissenting) (internal quotation marks and citations omitted).
    This conclusion holds across the spectrum of interpretive theories. 
Indeed, it is perhaps most necessary for expansive methodologies, such 
as ones depending on ``the evolving standards of decency that mark the 
progress of a maturing society.'' Trop v. Dulles, 356 U.S. 86, 99-101 
(1958). Because such expansive strategies are less anchored in the 
Constitution's text, structure or history, a jurisprudential limitation 
on the geographic or jurisdiction sources of law is necessary to ensure 
that constitutional law remains predicated on neutral principles and 
not on the whims of individual judges or court compositions.
    To be sure, legislative direction to the courts on how to interpret 
the Constitution may raise significant separation of powers concerns. 
This Resolution, however, does not provide such direction, or otherwise 
require the courts to adhere to any of its statements. Rather, the 
Resolution merely provides the sense of this body that interpretations 
of our Constitution should not be governed by foreign judgments or 
views.
    It is wholly appropriate for the House of Representatives to 
provide its opinions on the interpretation of the Constitution, a 
document that its members, just as the members of the judiciary, have 
sworn to uphold and defend. It is certainly no more inappropriate than 
the all-too-often practice of federal judges, at all levels, to suggest 
legislative changes to Congress or even to make policy pronouncements 
on pending legislative matters.
                                 ______
                                 
    In the final analysis, I conclude that there is a place for the 
consideration of foreign judgments, and that place is in the 
interpretation of treaties with those foreign nations. Where 
consideration of foreign judgments is inappropriate is in the arena of 
purely domestic laws, for only when a formal agreement has been reached 
via a ratified treaty to conduct ourselves as they do in other 
countries is such consideration appropriate in our democratic system. 
Thus, I support the declaration set forth in House Resolution 97 that 
``judicial interpretations regarding the meaning of the Constitution of 
the United States should not be based in whole or in part on judgments, 
laws, or pronouncements of foreign institutions unless such foreign 
judgments, laws, or pronouncements inform an understanding of the 
original meaning of the Constitution of the United States.''

    Mr. Chabot. Mr. Whelan, you are recognized for 5 minutes.

        TESTIMONY OF M. EDWARD WHELAN, III, PRESIDENT, 
                ETHICS AND PUBLIC POLICY CENTER

    Mr. Whelan. Good afternoon, Chairman Chabot and other 
Members of the Committee. Thank you for the opportunity to 
testify here today.
    Mr. Chabot. I am not sure the mike is on. If it is, you 
need to pull it a little closer.
    Mr. Whelan. Should be on now.
    Mr. Chabot. Thank you.
    Mr. Whelan. Good afternoon. Thank you for inviting me to 
testify here today.
    Two recent developments confirm that the threat posed by 
the Court's misuse of foreign law is real and growing.
    First is the Supreme Court's ruling in March in Roper v. 
Simmons. There, a five-Justice majority relied on international 
opinion as it held the execution of offenders who were 17 at 
the time of their offense violates the eighth amendment. And 
the sixth Justice, although in dissent, approved of the 
majority's resort to foreign law. The facts of Roper warrant 
special attention as they starkly illustrate how the same 
Justices who bow to the views of foreigners, are disdainfully 
dismissive of the rights of American citizens to engage in 
self-governance in this country.
    When he was 17, Christopher Simmons planned a brutal 
murder. He assured his friends they could get away with it 
because they were minors. In the middle of the night, Simmons 
and a friend broke into a woman's home, awakened her, covered 
her eyes and mouth with duct tape, bound her hands, put her in 
her minivan, drove to a State park, walked her to a railroad 
trestle spanning a river, tied her hands and feet together with 
electrical wire, wrapped her whole face in duct tape, and threw 
her from the bridge. Exactly as Simmons planned, his victim 
drowned, an unspeakably cruel death, in the waters below. 
Simmons confessed to the murder.
    At the death penalty phase of his trial, the judge 
instructed the jurors that they could consider Simmons' age as 
a mitigating factor and the defense relied heavily on that 
factor. The jury recommended and the trial judge imposed the 
death penalty.
    Overturning its own precedent, the five-Justice majority 
ruled that the death penalty for juvenile offenders violates 
the eighth amendment. In support of its ruling, it found what 
it called ``respected and significant confirmation'' in the 
``overwhelming weight of international opinion against a 
juvenile death penalty.'' According to the majority, the fact 
that the United States, alone with Somalia in the world, has 
not ratified article 37 of the U.N. Convention, which contains 
an express prohibition on capital punishment for crimes 
committed by juveniles, supports its conclusion that the 
juvenile death penalty is unconstitutional.
    But as Justice Scalia observed in dissent, ``unless the 
court has added to its arsenal the power to join and ratify 
treaties on behalf of the United States,'' the United States' 
nonratification of article 37 undercuts rather than supports 
the majority's position. Scalia also points out that the 
Justices in the majority would never aim to conform American 
law to the rest of the world on matters like the exclusionary 
rule, church-state relations, and abortion.
    Second, in recent months, at least two Justices in the 
Roper majority have made remarkably feeble efforts to justify 
free-wheeling resort to foreign law on a broad range of 
constitutional questions. Addressing a group of international 
lawyers, Justice Ginsburg resorts to kindergarten talk. ``We 
can learn from others,'' she says. ``We can join hands with 
others.'' We should ``share our experience.''
    But she never explains how a foreign court's decision on 
how a foreign law measures up to a foreign charter can have 
analytical value in construing our Constitution.
    Justice Breyer argues that citing foreign judges might 
``give them a leg up'' in dealing with legislators in their own 
countries. In short, he seems to think it part of his job to 
attempt to influence internal disputes in foreign countries. 
Beyond that, Breyer utters irrelevant platitudes like 
``Americans are human and so is everybody else,'' and ``our 
people in this country are not that much different than people 
other places.''
    There is no legitimate basis for the Supreme Court to rely 
on contemporary foreign laws or decisions in determining the 
meaning of provisions in our Constitution. The six Justices who 
resort to these materials do so because they embrace an 
essentially lawless, utterly unconstrained view of their own 
role as Justices.
    It is no coincidence that it is these same six Justices who 
have endorsed the vacuous New Age declaration that ``At the 
heart of liberty is the right to define one's own concept of 
existence of meaning, of the universe, and of the mystery of 
human life.'' For that declaration is nothing more than 
camouflage for the underlying claim by those Justices to have 
the limitless power to define for all Americans which 
particular interests those Justices think should be beyond the 
bounds of American citizens to address through legislation.
    The Framers established a constitutional structure into 
which American citizens, within the broad bounds delineated by 
the Constitution, have the power and responsibility to decide 
how their own States and communities and the Nation should be 
governed. In their ongoing project to demolish that structure, 
these six Justices see foreign law as another powerful tool 
that they can wield whenever it suits them.
    Thus the broader long-term resolution to the problem that 
House Resolution 97 usefully addresses is the confirmation to 
the Supreme Court of originalist Justices like Scalia and 
Thomas who understand that the Constitution constrains them to 
construe its provisions in accordance with the meaning those 
provisions bore at the time they were promulgated--Justices, in 
short, who understand that the Constitution does not give them 
free rein to impose their own policy preferences on the grand 
questions of the day.
    Thank you.
    Mr. Chabot. Thank you.
    [The prepared statement of Mr. Whelan follows:]

               Prepared Statement of M. Edward Whelan III



    Mr. Chabot. Mr. Rosenkranz, or Professor Rosenkranz, you 
are recognized for 5 minutes.

  TESTIMONY OF NICHOLAS Q. ROSENKRANZ, PROFESSOR, GEORGETOWN 
                     UNIVERSITY LAW CENTER

    Mr. Rosenkranz. I thank you, and I thank the Committee for 
the opportunity to express my views on this important topic.
    I largely agree with what has been said so far, so I will 
limit myself to three brief comments:
    First, I will discuss the separation of powers implications 
of directing a resolution regarding constitutional 
interpretation to the judiciary.
    Second, I hope to show that the reliance on current foreign 
law undermines the bedrock principle of democratic self-
governance.
    Third, I will explore whether the Congress should also take 
up the same issue in the context of statutory interpretation.
    The first point I wish to make is that House Resolution 97 
is consistent with separation of powers. At a prior hearing 
before this Committee, my colleague, Professor Vicki Jackson, 
suggested that legislative directions to the courts on how to 
interpret the Constitution raise serious separation of powers 
questions. She may well be right.
    But the key point today is that House Resolution 97 does 
not give directions to the courts. It does not purport to bind 
them. It simply expresses the sense of the House on this 
question. Because the resolution does not bind the judiciary, 
it cannot be objected to on separation of powers grounds. 
Indeed it should be applauded on these grounds. It is entirely 
proper for Congress to inform the courts of its views on 
constitutional interpretation. It is particularly appropriate 
when the method under discussion has such dramatic 
implications.
    Which brings me to my second point. The current 
predilection for using contemporary foreign law to interpret 
the U.S. Constitution necessarily entails a rejection of the 
quest for original meaning. Simply put, those who would cite 
contemporary foreign law necessarily embrace the notion of an 
evolving Constitution.
    The notion of the Court updating the Constitution to 
reflect its own evolving view of good government is troubling 
enough, but the notion that this evolution may be brought about 
by changes in foreign law raises fundamental issues of 
democratic self-governance. This, I think, puts the finest 
point on what is really at stake here. When the Supreme Court 
declares that the Constitution evolves, and declares further 
that foreign law affects its evolution, it is declaring nothing 
less than the power of foreign governments to change the 
meaning of the United States Constitution.
    Moreover, it might take only a single foreign country to 
tip the scales and create a consensus in the eyes of the 
courts. And there is no reason why a foreign country could not 
do this self-consciously. Indeed, France has expressly 
announced that one of its priorities is the abolition of 
capital punishment in the United States. Yet surely it would 
come as a shock to the American people to imagine the French 
Parliament deciding whether to abolish the death penalty not 
just in France, but also in America.
    After all, foreign control over American law was a primary 
grievance of the Declaration of Independence. King George III 
had ``subject[ed] us to a jurisdiction foreign to our 
constitution.'' This is exactly what is at stake here: foreign 
government control over the meaning of our Constitution. Any 
such control is inconsistent with basic principles of 
democratic self-governance, reflected both in the Declaration 
of Independence and in the Constitution itself.
    The third point I wish to make is that while the resolution 
is limited to interpretation of the Constitution, courts often 
rely on foreign and international law in the interpretation of 
other federal law as well. Now, Professor Dinh has explained 
how foreign judgments may be relevant to the interpretation of 
treaties. A different question is whether international law may 
be relevant to the interpretation of Federal statutes.
    Under current doctrine, courts regularly bend over 
backwards to construe Federal statutes to be consistent with 
international law, even when the text of the statute would 
perhaps be a different construction. Now, particularly in light 
of the dramatic expansion and metamorphosis of customary 
international law since World War II, Congress may want to 
consider whether it approves of this doctrine.
    If it decides that the answer is no--that it would prefer 
for its statutes to be read according to their plain terms 
without reference to international law--then it might consider 
a subsequent resolution parallel to the present one, expressly 
rejecting the general use of international law in interpreting 
Federal statutes.
    Indeed, while congressional mandates to foreign--Federal 
courts regarding constitutional interpretation may raise 
separation of powers concerns, congressional mandates regarding 
statutory interpretation generally do not. Thus Congress could, 
in fact, go further and enact a mandatory statute along the 
following lines: ``Future acts of Congress shall not be 
interpreted by reference to foreign or international law unless 
they expressly reference and incorporate such bodies of law.'' 
I believe that such a statute is worthy of serious 
consideration.
    In conclusion, House Resolution 97's nonbinding message to 
the courts does not violate separation of powers but, rather, 
reflects a healthy step toward interbranch constitutional 
dialogue. Moreover, the resolution rightly rejects the 
troubling notion that our Constitution can be made to evolve at 
the behest of foreign institutions. My only suggestion is that 
Congress next study this same issue as it applies in the 
context of statutory interpretation.
    I applaud House Resolution 97, and I thank the Committee 
for the opportunity to endorse it.
    Mr. Chabot. Thank you very much.
    [The prepared statement of Mr. Rosenkranz follows:]

            Prepared Statement of Nicholas Quinn Rosenkranz




    Mr. Chabot. Our final witness this afternoon is Professor 
Cleveland. You are recognized for 5 minutes, Professor.

           TESTIMONY OF SARAH CLEVELAND, PROFESSOR, 
               UNIVERSITY OF TEXAS SCHOOL OF LAW

    Ms. Cleveland. Thank you. I also thank the Committee for 
inviting me to address this important subject. Before I start, 
I should note I am speaking in my personal capacity. None of 
the views I state reflect the views of the University of Texas.
    I oppose proposed Resolution 97, because the resolution is 
contrary to over 200 years of American constitutional 
tradition. Since the founding of this country, the Federal 
courts routinely have considered foreign sources of laws in 
resolving constitutional questions, and the recent cases such 
as Lawrence and Roper are fully consistent with this heritage. 
Indeed, it is the critics of the practice who are the 
innovators now.
    Foreign sources have been employed by the most respected 
jurists this country has known, including Chief Justice John 
Marshall, Chief Justice Taney, Justices Story, Field, John 
Marshall Harlan, Cardozo, Sutherland, Jackson, Frankfurter, and 
Chief Justice Earl Warren.
    At least seven members of the current Supreme Court have 
embraced the use of foreign authorities, including Chief 
Justice Rehnquist, who has supported having U.S. courts look to 
the decisions of other constitutional courts to aid in their 
own deliberative process.
    The Court has employed constitutional--international legal 
materials in constitutional analysis for a variety of purposes. 
For example, courts often explain a domestic constitutional 
rule by distinguishing it from another country's practices. 
Judges, including Justice Scalia, have used foreign examples to 
test the likely result of a particular constitutional 
hypothesis. Yet even these modest uses of foreign authority 
could be considered contrary to House Resolution 97.
    The Supreme Court has also recognized that our 
constitutional design invites consideration of foreign 
authorities in a variety of ways. I will offer six examples.
    First, the one that has been mentioned already, Congress' 
power to define and punish offenses against the law of nations, 
requires the Court to consider international rules in 
construing the scope of Congress' authority.
    Second, the Court has looked to international law to 
interpret constitutional terms that refer to concepts of 
international law such as ``war'' or ``treaties.'' 
Constitutional war powers decisions in particular have drawn 
heavily from modern international law norms, not simply the 
international rules that existed at the time of the framing.
    Third, in perhaps the most interesting set of cases, the 
courts have looked to international rules governing relations 
between sovereign nations and applied those rules to determine 
the scope of State authority within our Federal system. They 
have done this in the context of 14th amendment Due Process and 
the Full Faith and Credit Clause.
    Fourth, in numerous cases involving Congress' power to 
regulate immigration, govern Indian tribes, govern territories, 
exercise the power of eminent domain, and to borrow money, the 
Court has looked to the powers of other sovereign governments 
to conclude that Congress should, in fact, have this power.
    Fifth, the Court has also recognized that international law 
may create a compelling governmental interest in constitutional 
cases. The case of Booz v. Berry involved the question of 
whether or not a D.C. ordinance regulating protests outside of 
foreign embassies violated the first amendment. The Supreme 
Court recognized that U.S. international obligations could 
create a vital governmental interest, warranting regulation 
under some circumstances. The case indicates that in some 
context it would be difficult to interpret even the first 
amendment without considering modern international law.
    Finally, to the extent that the Constitution's individual 
rights provisions incorporate assumptions about the basic 
rights of all human beings, the Court has recognized for over 
100 years that foreign practices regarding shared common values 
are an appropriate sounding board for the scope and meaning of 
constitutional norms. This approach recognizes, as did the 
Declaration of Independence, that our constitutional heritage 
incorporates certain rights that are shared and 
``inalienable,'' not simply rights unique to the American 
tradition.
    Moreover, the use of foreign sources of law is not a 
liberal versus conservative issue. The current Republican 
administration has relied heavily on modern international law 
rules in interpreting the President's powers to fight the war 
on terror, including the power to convene military tribunals 
and the power to detain enemy combatants.
    My primary point in offering these examples is to 
underscore the extent to which reliance on international and 
foreign sources is fully part of the American constitutional 
heritage. An effort to eliminate reliance on foreign 
authorities in constitutional analysis therefore would pull the 
rug out from beneath many of our constitutional doctrines, 
including many of the established powers of this Congress.
    Judicial consideration of foreign authority does not mean, 
however, that we are delegating control over our values to 
foreign governments or violating our own democratic traditions. 
It is our domestic Constitution, as interpreted by our own duly 
appointed judges, that determines the relevance of foreign 
authorities to our constitutional system in every case.
    Thank you.
    Mr. Chabot. Thank you very much, Professor.
    [The prepared statement of Ms. Cleveland follows:]

                Prepared Statement of Sarah H. Cleveland



    Mr. Chabot. Now the Members of the panel up here will have 
5 minutes each to ask questions. I will begin with myself.
    Last year it was suggested by some that this topic was 
really much ado about nothing. Since then, we have witnessed 
the courts becoming more public and unapologetic about the need 
to rely on the international community to give them a better 
understanding of our own Constitution or to help them in 
deciding cases in this country.
    How real is the threat that reliance on foreign opinions, 
especially those that are consistent with the judges' own moral 
or social policy judgment, will become standard practice? What 
are the implications of such selective interpretations, such as 
that used in Roper, and, prior to that in Lawrence, if Congress 
does nothing?
    I would invite any of the members of the panel to respond 
if they would like to do so, in any order that you would like 
to, if anybody wants to jump in at the bit.
    Mr. Whelan.
    Mr. Whelan. I think it's an excellent question. I think 
that reliance on foreign law, as I described, is another engine 
of lawless judicial activism. No Justice has been able to 
explain when it would be proper to do so, when it wouldn't, in 
terms of construing the meaning of the Constitution. I think 
most of the examples we have heard--I agree with the point Mr. 
Feeney made. Most of the examples that Professor Cleveland 
raised are examples to which we would have no objections. They 
are not examples that come at the core of construing the 
meaning of the Constitution. But more than that, even if one 
can find sporadic examples in the past where this may have been 
done, what we are facing right now is a concerted effort 
internationally to try to impose international norms and laws 
on the American people to detract from their sovereignty, their 
ability to govern themselves.
    This is a real threat that is multifaceted. The Justices 
will be feeding that threat if they continue to invoke foreign 
law in the unprincipled manner in which they have been doing.
    Mr. Chabot. Thank you. Any other witnesses like to answer 
that? I have got more questions if not. But, Professor 
Cleveland.
    Ms. Cleveland. Well, I would simply observe that my 
comments go to the fact that this has been standard practice 
for two centuries in certain constitutional contexts, and that 
indeed the process is a very modest one. That in the Lawrence 
case, all the Supreme Court did was note that contrary to Chief 
Justice Berger's opinion in Bowers v. Hardwick, the European 
Court of Human Rights had prohibited homosexual sodomy 5 years 
before the Bowers v. Hardwick decision. He [Justice Kennedy] 
was simply correcting an error that had been made by the prior 
court.
    Likewise in Roper, the Court found a national consensus 
prohibiting the execution of juveniles and concluded that 
because of--for developmental reasons, juveniles were 
inappropriate for the death penalty--before they ever 
considered international practice--and then they only did so as 
one element in a very complex eighth amendment analysis.
    Mr. Chabot. Thank you. Professor Whelan.
    Mr. Whelan. There is a game going on here where those who 
invoke foreign law always pretend that it doesn't matter. Let's 
take the words of the Supreme Court seriously in the Roper 
case. The Court said that foreign law, international opinion, 
was providing confirmation for its holding. Now, you can say, 
``Oh well, perhaps it appears it would have reached the same 
conclusion no matter what.'' Perhaps it might have.
    You know what these Justices are telling us is, ``Don't 
worry, it's not controlling.'' That gives no comfort at all. 
When they say it is not controlling, they are not denying the 
fact that it is a factor that will be given weight, and that 
weight could prove in any particular case to be dispositive--
but we will never know when. More than that, the fact that it 
is not controlling is simply an illustration of the fact that 
this is lawless judicial activism. They come up with no 
principle--they will not be bound by it.
    I am not worried about any Justices saying, ``I am going to 
be bound by foreign law in these areas.'' They are not going to 
commit themselves to that because they want to select foreign 
decisions in a very opportunistic manner in order to support 
whatever decision they want to reach. That is why----
    Mr. Chabot. Thank you. My time is just about up here. What 
I am going to do is recognize Mr. Nadler here for his 5 
minutes. We have some votes on the floor, but I think we can 
fit in one set of 5 minutes here before we vote, so Mr. Nadler 
is recognized for 5 minutes.
    Mr. Nadler. Thank you. Part of this debate concerns the 
question of original intent. With respect to the Roper 
decision, which was the death penalty for juveniles decision, 
some have argued that the majority should not have considered 
evolving standards of decency; that they should only look to 
the original intent of the Framers at the time of the adoption 
of the Constitution.
    The resolution--some of the testimony today seems to take 
that position as does Justice Scalia. As Justice O'Connor 
pointed out in her dissent, that would mean interpreting the 
Constitution to permit the execution of 7-year-olds, which was 
apparently the understanding 20 years ago. Should the Court 
hold as permitted any punishment meted out at the time of their 
eradication of the eighth amendment? Is that where we are at, 
Professor Dinh?
    Mr. Dinh. What a wonderful question not only in this 
context but in the context of the Constitution interpretation 
in general. As you know the eighth amendment prohibition is 
against cruel and unusual punishment. So, just like the concept 
of reasonableness, I think, the Founders had put into 
constitutional language some temporal give to allow judges----
    Mr. Nadler. By the use of the world ``unusual'' as opposed 
to simply ``cruel.''
    Mr. Dinh. Exactly.
    Mr. Nadler. Because what is cruel now is cruel 200 years 
from now. But what is unusual--but what is not usual now may be 
unusual 200 years from now?
    Mr. Dinh. I think that by and large, that is correct. Where 
I think where we would part company is where the Supreme Court 
has held that this language depends upon, quote, ``the evolving 
standards of decency'' that mark the progress of a maturing 
society in 1958. Whether or not that is a correct standard, 
that is the applicable standard that the Court was applying in 
Roper v. Simmons.
    My testimony here, I want to stress, does not depend upon 
the adoption of any particular interpretive methods. Indeed, 
the need to eschew foreign law holds across the spectrum of 
interpretive theories.
    Mr. Nadler. I hear that. But let me go further, because I 
only have a few minutes. Taking your point, taking your point 
that the cruel and unusual could evolve over time, because 
there is a give in that phrase, in Bowers--I am sorry, in 
Lawrence--as Professor Cleveland pointed out--the opinions 
citing British and--cited British and European authorities 
basically to rebut the assumption in Bowers v. Hardwick that 
homosexual sodomy was universally condemned by Western 
civilization, to say, no, maybe it was once, but it isn't now. 
Is that a misuse of the power given what you have just said?
    Mr. Dinh. I think it is, because it is--it is an 
abandonment of any anchoring of an expansive interpretive 
theory, especially if your interpretive theory is not anchored 
on text, history, and structure of the Constitution. You have 
to find your legitimacy somewhere, but taken out of your own 
jurisdiction----
    Mr. Nadler. Professor Cleveland, could you answer my 
question?
    Mr. Dinh. --in terms of the legitimacy of the Court.
    Ms. Cleveland. Well, the question is what does fundamental 
liberty protect? In the Bowers decision, the Justices, or at 
least Chief Justice Burger, had looked out at what he thought 
was Western civilization and said, uniformly, Western 
civilization prohibits this, when in fact homosexual sodomy 
could not be criminalized within the 50 states of the Council 
of Europe. That was the point that Justice Kennedy was making. 
I think it's a very important one.
    Mr. Nadler. So in other words, Justice Burger used--cited 
the practice internationally to justify the Bowers decision by 
saying this is condemned everywhere; and in the Lawrence 
decision, they cited international decisions to say that is 
simply, factually, incorrect as to what the foreigners do, 
because it was cited originally by Berger.
    Ms. Cleveland. Precisely.
    Mr. Nadler. Is there nothing wrong with that in either way? 
Assuming that Berger had not been wrong factually, was it wrong 
for him to cite the foreign consideration; was it wrong for the 
Court 20 years later to cite it also?
    Ms. Cleveland. I don't believe so. If Burger had been 
correct, then one consideration in deciding what fundamental 
liberties are protected under the Due Process clause would be 
what our Western civilization historically has allowed or 
prohibited.
    Mr. Nadler. Thank you.
    Let me ask Mr. Whelan and Professor Rosenkranz, do you 
think that Chief Justice Burger was wrong in Bowers to cite the 
universal condemnations, as he put it, of homosexuality and to 
cite foreign courts and foreign practice?
    Mr. Whelan. Sir, I believe you are dealing with an opinion 
of Justice White's. Perhaps I am mistaken, but Justice White 
wrote the lead opinion in Bowers. I am sorry, Lawrence--Bowers, 
excuse me.
    Mr. Nadler. Bowers, yes.
    Mr. Whelan. I am confused now. I haven't read that opinion 
recently. I don't know whether he was responding to one of many 
arguments that was made. I would, though, if you would permit 
me to respond to your question about the common--the 
understanding of the eighth amendment at the time of the 
founding. With all due respect, I believe your question betrays 
a fundamental distrust of the American people.
    The fact that the American people might have a power to 
enact unjust laws no more means that power shouldn't exist than 
the fact that they might have power to say that if you cross 
Constitution Avenue you should be wearing yellow pajamas and 
hopping on one foot, There is no reason to think that----
    Mr. Nadler. Wait a minute. What has that got to do with 
what I have said? I am completely lost.
    Mr. Chabot. The gentleman's time has expired.
    Mr. Nadler. Could I ask unanimous consent for 1 additional 
minute?
    Mr. Chabot. How about 30 seconds, because we need to be on 
the floor in about 5 minutes.
    Mr. Nadler. Let me just say I believe the Congress has the 
power to enact anything delegated to it, including the 
Necessary and Proper clause interpreted in McCall v. Maryland 
and its progeny, up to where it's limited by the Bill of 
Rights.
    Let me just take 30 seconds, Mr. Chairman, to note the 
presence in this hearing room of the distinguished judge of the 
highest State court of New York, the Court of Appeals, Robert 
Smith.
    Mr. Chabot. Excellent. We appreciate your appearance here 
today.
    I might note that there is probably only about 5 minutes 
left on the vote on the floor. We have five votes. I would 
encourage the Members to come back immediately after the fifth 
vote. We will take up the hearing from there. These are the 
last votes of the day, so I am not sure how many Members will 
come back. But I know these Members are probably the most 
hardworking Members in the whole Committee, so I think they 
will be back.
    We will see you back here. It will probably be about 45 
minutes because we do have five votes on the floor. So we are 
in recess.
    [Recess.]
    Mr. Chabot. The Committee will come back to order. The 
gentleman from Indiana, Mr. Hostettler, is recognized for 5 
minutes.
    Mr. Hostettler. I thank the Chairman, and I thank the 
Chairman for holding this very important hearing.
    As we look at cases recently and in the past that the 
Supreme Court has ruled on, I come to the conclusion, as was 
stated by some of the witnesses, that basically the Court uses 
whatever they want to use to determine what they believe to be, 
what they feel is their own interpretation or application of 
the Constitution for any particular situation: the use of 
international law; as they see fit, the use of congressional 
intent or noncongressional intent; a consensus of community 
values, community views.
    And I would like the witnesses just to kind of maybe put a 
finer point on, maybe--or a blunt point would be better--in 
responding to the notion that someone, a layman looking at, 
which I am, looking at the views of the Court, would conclude 
that based on what the Court wants to do with a particular 
issue, particular case, they find an excuse or reason, a 
rationale to come up with their viewpoints.
    I would like to, before I ask you to respond to that, visit 
for the record, to try to correct the perception that might 
have been created earlier about the notion that Justice Kennedy 
spoke to what was decided by in Bowers and commented on by 
Chief Justice Burger with regard to the use of international 
law.
    Actually, later on in his decision, he actually says, 
quote, ``To the extent Bowers relied on values we share with a 
wider civilization, it should be noted that the reasoning and 
holding in Bowers have been rejected elsewhere,'' end quote. 
And it goes on to cite the European court of human rights in a 
case, 2001; Modinos v. Cyprus, 1993; Norris v. Ireland, 1988.
    So the Court was not merely looking. Kennedy was not--
Justice Kennedy was not merely looking at what had happened 
prior to Bowers. But he also extrapolated and went forward to 
and suggested that this decision should come down relative to 
international norms as found in international proceedings.
    But am I wrong in a layman's reading of Court decisions 
that suggest that if the Court wants to rely on congressional 
intent, deciding something in the majority, if it does and if 
it doesn't; and if it wants to rely on international law or 
other tribunals to come down on a decision that--in a way that 
it--in science we refer to it as dry-labbing. And that is, you 
know the answer to the question; you just now have to create 
the hypothesis and the experiment to be fashioned around the 
response that you want or that you know that you are going to 
get out of the experiment.
    Are we basically dry-labbing when it comes to Supreme Court 
decisions in many cases?
    Mr. Dinh. I will start. I hope you are wrong. And I hope 
that the debate here is only one of form. But it is a very 
important one of form, especially if you are wrong. That is 
that judges are actually making honest, faithful decisions, 
rather than dry-labbing or predetermining the result and then 
making up the reasoning in order to justify it. Because that 
truly would be a subversion, not only of the democratic 
process, but the rule of law that the judges are sworn and 
ordered to protect.
    Perhaps that would be a violation of article VII that Mr. 
Feeney was looking for elusively earlier. So I do hope that you 
are wrong.
    In all the evidence that I look at, I would give the 
benefit of the doubt certainly to the Justices of the Supreme 
Court. But because these are very close cases and they are 
cases that divide society, in which the Supreme Court and 
judges hold great sway, I think it is incumbent upon the judges 
to rely upon not only appropriate, but truly legitimate sources 
of interpretation so that the power of the robe, which is the 
legitimacy of their word and of their interpretive techniques, 
survives the inevitable political and social controversy that 
would attend to any one of these very close calls of a 
decision.
    Mr. Chabot. The gentleman's time has expired. Did the 
gentleman wish to get response from the others?
    Mr. Hostettler. Unanimous consent to respond for the 
others.
    Mr. Chabot. Absolutely. The others Members can respond.
    Mr. Whelan. Mr. Hostettler, what you so well described 
about Justices just making it up and looking for whatever 
arguments support their conclusions is exactly the case for six 
Justices on the Supreme Court.
    They use the label ``the living Constitution,'' and they 
get all sorts of support from left-wing academics and also the 
camouflage from the media. But that is exactly what they are up 
to. There is no benefit of the doubt left to be accorded. We 
have been seeing it for several decades now. And that is why we 
need to have Justices who recognize that they themselves are 
constrained by principles outside them in the manner that they 
construe the Constitution and other Federal laws.
    Mr. Rosenkranz. I think it is a terrific question. I think 
the hyper-realist critic of the Court is that the result comes 
first and that we can always find reasoning for whatever result 
we prefer.
    I, like Professor Dinh, like to think that this is a 
caricature. Perhaps there is some truth to it, but surely it is 
an exaggeration. And the main constraint on the judiciary is 
that they have to write down their reasons, and for that 
reason, we do some good when we rule some rationales off the 
table.
    We say, you can write down a number of different kinds of 
reasons, but reasoning from current international law is 
illegitimate. We rule that off the table. We make it harder to 
reach certain results. We constrain judges to appropriate 
methods of constitutional interpretation. It doesn't make it 
impossible to do results-oriented judging, but it does make it 
harder. So I think we move the ball down the field when we 
engage in this exercise.
    Ms. Cleveland. I would agree with Professor Rosenkranz that 
the hyper-realist view is, we all hope, a characterization, and 
there are very real constraints on what decisions judges can 
reach. They are bound by the text of the Constitution. They are 
bound by the structure. They are bound by precedent. They are 
bound by history. They are bound by what society will tolerate.
    And Justice O'Connor, among other Justices, has observed 
that the Supreme Court never strays too far to the left or the 
right of the society in which it is currently operating.
    None of those constraints would prohibit any particular 
individual from reaching a particular conclusion, but 
collectively within the dynamic of the Court, they actually 
play a very real role, as we all saw as law clerks, in 
confining the range of movement that the judges have available 
to them.
    Mr. Hostettler. Thank you.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from Virginia, Mr. Scott, is recognized for 5 
minutes.
    Mr. Scott. Thank you. Thank you, Mr. Chairman. And I hope 
the sponsors of the amendment won't be offended if I don't 
agree with the idea that we ought to rely on the original 
intent of the Constitution. Insofar as if we kept the original 
intent, I would only have three-fifths of a vote on this 
Committee and not a full vote.
    Mr. Hostettler. Will the gentleman yield on that.
    Mr. Scott. I will yield.
    Mr. Hostettler. And that is an excellent point in that that 
was changed by amendment--amending the Constitution. But the 
notion of obtaining the consensus of the American people 
outside of an article V process is, I think, not legitimate as 
far as the Constitution is concerned.
    And I thank the gentleman for yielding.
    Mr. Scott. Reclaiming my time, let's kind of quick put this 
in context.
    If this resolution passes and the chief sponsor of the 
resolution says, this will prevent judges from ruling in such a 
way--Professor Cleveland, if this resolution passes, will it 
have any effect on the judiciary?
    Ms. Cleveland. It won't have any effect on the judiciary in 
the sense that----
    Mr. Scott. Will it have any legal effect?
    Ms. Cleveland. It won't have any legal effect on the 
Federal judiciary. It could have a chilling effect on what 
judges have been--are willing to do.
    Mr. Scott. We have been trying to chill the judges, but 
this won't be doing anything more than anything else we have 
been doing up here.
    Let's--if we deny that, will we have phrases like ``cruel 
and unusual''? Who do you think decides what is cruel and 
unusual without taking a global view on it?
    Why shouldn't--Professor Cleveland, why shouldn't the 
courts take into consideration that in putting juveniles to 
death we are the only ones in the world doing it? Doesn't that 
kind of inform us as to what is cruel and unusual?
    Ms. Cleveland. If the United States is the only country in 
the world imposing the punishment, I would submit to you that 
that is truly unusual.
    Mr. Scott. If we waited for judges--if we waited for 
legislatures to change the rules rather than letting activist 
judges change the rules, could Brown v. Board of Education ever 
have been decided? Could we have eliminated segregated public 
schools by waiting for the legislative branch and State 
legislatures to change the results?
    Ms. Cleveland. It would have taken a long time given the 
limitss on African-Americans voting in southern States and 
elsewhere.
    Mr. Chabot. Will the gentleman yield? That was reversed in 
bad previous court decisions.
    Mr. Scott. You are absolutely right. Activist judges 
overturned properly enacted State laws requiring segregated 
schools.
    Mr. Scott. Since the Committee is so fixated on marriages, 
let's try Loving v. Virginia. If we had to wait for Virginia to 
change the law on mixed marriages, would we still be waiting.
    Professor Cleveland, do you see any evidence that Virginia 
anywhere along--since the 1960's, would have actually changed 
the law?
    Ms. Cleveland. Again----
    Mr. Scott. I served on the legislature for 15 years. I can 
tell you there is a lot of stuff that we thank the judicial 
branch for deciding for us because we never would have gotten 
around----
    Ms. Cleveland. Well, in the same way, in the Lawrence case, 
the Texas homosexual sodomy statute had not been enforced by 
the Texas government for years. And, in fact, it had become 
almost impossible to challenge it because the State of Texas 
was unwilling to enforce it. But the legislature wouldn't have 
repealed it.
    Mr. Scott. I guess we just want to keep this in context 
that whether we pass this or not won't have any effect on the--
will have no legal effect on whatever we do. So I will yield 
back the time.
    Mr. Chabot. The gentleman yields back his time.
    The gentleman from Iowa, Mr. King, is recognized for 5 
minutes.
    Mr. King. Thank you. Thank you, Mr. Chairman. And I do 
appreciate the testimony on the part of the witnesses.
    And so sometimes it is a little hard to keep a little flow 
of continuity here when we run off to vote, but a number of 
things in the previous testimony occur to me and one is that a 
number of you have been clerks for Supreme Court Justices and 
you have got a sense of how things flow inside those chambers. 
And so, you know, I am watching more and more cases being 
decided--or I will say, considered--that reference and cite 
foreign law. And it seems to me that the incidence of the 
citing of foreign law is growing significantly and 
dramatically.
    And so I start my first question with Mr. Dinh.
    I understand you clerked for Justice Scalia. And I know 
that you do a lot of the research and the clerks do a lot of 
the research. But since this incidence of foreign law is coming 
up consistently more, is there a reason for that? Are you 
digging back into foreign law books? Are there people that are 
staff people that are designated to do this type of research?
    For me, it wouldn't occur to me to look at Chinese law or 
United Kingdom law or Somali law or Zimbabwean law as a 
resource. Who is creative enough to even go look at that law 
before it is cited?
    Mr. Dinh. Thank you very much for that question, sir.
    I did not work for Justice Scalia. I clerked for Justice 
O'Connor. Otherwise, I would not have been looking at foreign 
law sources. But I think your question is a very good one.
    The Courts, in the words of Justice Scalia--then Judge 
Scalia--are not roving boards of inquiry. They are not there in 
order to find and solve all the problems of the world according 
to their own life and doing their own research on the Internet 
or in Zimbabwe or elsewhere, but rather depend upon the 
research and the arguments presented to them by the lawyers.
    And I frankly go into the third point of my opening 
statement. I frankly do not have very much faith--aside from 
all of the jurisprudential and democratic objections, I do not 
have very much faith in the ability of domestic judges and 
lawyers to get foreign law right, because at the end of the 
day, we are not steeped in those cultural and legal traditions 
and we end up cherry-picking the ones that support our 
predelictions.
    Mr. King. I did hear that part of your testimony--although 
I was not attentive when you were introduced, I did not hear 
that, Mr. Dinh. I apologize.
    Mr. Whelan, Mr. Dinh has testified that he believes that 
material comes from the attorneys. Would you speculate as to 
whether that is fully the case, or do you believe that there is 
some research that is done from inside the Supreme Court 
chambers as with regard to foreign law? Are all of these 
citings, can we index those back to briefs that have been 
presented to the Court in these particular cases?
    Mr. Whelan. Well, I would only be speculating and certainly 
wouldn't want to speak to anything that I witnessed, though, of 
course, being a clerk for Justice Scalia, I did not witness any 
of that.
    I think what you see now is a dynamic where the Court, six 
Justices at least, have signaled their strong interest in 
foreign law as a potential resource. So lawyers, in turn, will 
be looking to provide those selective foreign legal authorities 
that support their positions, and Justices who want to cite 
those materials will do so. And I think you have a downward 
spiral as a result.
    Mr. King. Thank you.
    And Mr. Rosenkranz.
    Mr. Rosenkranz. I would just add to that that the research 
into foreign law is an extremely elaborate and time-consuming 
process, which is another great cost of this trend. So as has 
been pointed out, these sources are found by lawyers, and it 
takes them hours of billable time.
    And the question is, is this a good use of social 
resources? I think probably not.
    Mr. King. I am watching the clock tick down. I would be 
very interested in Professor Cleveland's answer.
    And I have something I need to do in the last minute, and 
that is--this is the foreign travel over the last 6 years of 
the Justices. And in this notebook here--the bookmark is the 
Constitution, by the way--is a spread sheet and a chart of the 
Justices' foreign travel and a list of where they have gone and 
who has paid for the trips.
    And then--I haven't done a proper analysis to make a 
presentation before this Committee, but I can point out that 
in, for example, June of 2000, Justice Kennedy went to China; 
and in June and July of 2001, Justice Breyer went to China; and 
in October of 2001, Justice Kennedy went back to China; and in 
September of 2002, Justice O'Connor went to China; and then in 
the Roper case in March 1, 2005, all of them cited Chinese law. 
That is one example.
    And I think history is replete with this. And so it may not 
be that--it may be that the research that is presented is 
presented by attorneys and in the briefs, but it might also be 
that their respect for this foreign law is cultivated on 
foreign trips, paid for by foreign entities. And that is the 
point I hoped to make.
    I thank you, and I yield back the balance of my time.
    Mr. Chabot. The gentleman yields back his time.
    The gentleman from Florida, the principal sponsor of the 
bill, along with Congressman Goodlatte, is recognized for 5 
minutes.
    Mr. Feeney. Thank you, Mr. Chairman. I thank all the 
witnesses. I think this is a fascinating discussion. I refer to 
it as a national civics lesson about the appropriate role of 
judges in our system of Government. And my friend from Virginia 
suggested that all we could really hope for with the resolution 
is to chill certain activities from the bench; and I have to 
admit that that is entirely what some of us intend to do with 
this.
    We would like to chill the Justices right out of article I 
legislative powers and back into article III. We would like to 
chill the article II, importing treaties; that we refused to 
sign, like the 37th article, for example, in the Roper case.
    We would like to chill them into respecting a Republican 
form of government in article IV. We would like to chill them 
out of amending the Constitution other than article V. And we 
would like to chill them back into the Supremacy Clause.
    So this is entirely designed to chill certain behavior and 
activity.
    I have a one-word question and am asking for a one-word 
answer from each of you so we can get to a couple of things 
very quick.
    Dean Koh has referred to the six-member majority, including 
Justice O'Connor, who intends to retire, as the 
``transnationalist Justices.'' and if that is a fair 
description--and I buy it--of the majority, do we have a term 
for the three Justices that are remaining fixed on the 
Constitution without reference to foreign law?
    And I will give each panelist, you know, a second or two to 
come up with one. Why don't we start with Mr. Dinh?
    Mr. Dinh. Traditionalist.
    Mr. Whelan. Two words, American originalist.
    Mr. Rosenkranz. Textualist.
    Ms. Cleveland. Professor Koh uses ``nationalist.''
    Mr. Feeney. And you adopt that term, Professor?
    Ms. Cleveland. It is a possible term.
    Mr. Feeney. One of the things I am very interested in is 
that Justice Ginsburg, off the bench, has tried to ragsize the 
use of references to foreign law in interpreting basic 
constitutional rights among other things.
    And she refers us to the Declaration, and she talks about 
how the Founding Fathers started out with a decent respect for 
the opinions of mankind. But everywhere she gives that talk, 
she refuses to include the rest of the sentence, which was that 
because of our respect for the opinions of mankind, we are 
required to, quote, ``declare the causes which impel them,'' 
meaning the States and colonies and people, ``to separation.''
    So our respect was limited to the notion that we owed 
people a discussion, an explanation, of exactly why we were 
separating ourselves from reliance on foreign law. And I think 
it is really disingenuous of her to continue to repeat that 
phrase as justification for what she is doing.
    I want to ask a theoretical question, and I would like the 
three folks that sort of agree that Feeney-Goodlatte House 
Resolution 97 is an appropriate message to Federal Justices.
    Given the fact that in the Atkins decision we overturned 
American laws given to us by legislators based on, among other 
things, the Zimbabwe approach to folks with mental disabilities 
and the death penalty, given the fact that in Lawrence we 
referred to the European courts human rights attitudes toward 
sodomy to again overturn not only elected representatives but 
their own precedent; and of course the Roper decision, where 
the U.N. Convention on the Rights of Children, which we have 
not adopted, which was essentially adopted and ratified for us 
by the Court.
    Supposing that I were an activist judge who was pro-life, 
and supposing this approach is appropriate, could I now justify 
overturning the precedent established in Roe v. Wade, in part, 
largely due to the fact that the attitudes through much of the 
globe do not permit abortion on demand, which is, to some 
extent, what Roe requires of us?
    If this approach is legitimate jurisprudence--we start with 
Mr. Dinh--do you think it would be inappropriate judicial 
activity for a judge offended by the decision in Roe to look at 
global attitudes of abortion on demand?
    Mr. Dinh. It is a very big ``if,'' but if the ``if'' holds, 
then I agree with you. And, yes, activism works both ways. And 
once you open up the Pandora's box of illegitimate sources of 
law, then it does not stop it one way or the other.
    Mr. Whelan. I have a two-part answer.
    First, Roe is wrong no matter what. You don't need to look 
to foreign law to find arguments for that. All Americans ought 
to recognize that it is time that the American people be 
restored their power to determine what abortion policy ought to 
be in the States.
    Second, again, though, if you grant your premise, a Justice 
would recognize that the abortion regime that has been imposed 
on this country is a regime more radical than that that exists 
in any virtually any country in the world. We don't need to 
look to parts of the world where abortion itself is not lawful 
generally. Even in Europe, as Mary Ann Glendon has pointed out, 
the laws there are far more moderate than the radical regime we 
have in this country.
    Mr. Feeney. Mr. Rosenkranz.
    Mr. Rosenkranz. Sir, you are quite right. And I believe 
that it brings us back to Congressman Hostettler's question in 
which we are left with the distinct impression that the Court 
is not doing this systematically, but is doing it selectively 
to achieve the results that they want to achieve.
    Mr. Feeney. Professor?
    Ms. Cleveland. In the 198Os, the Reagan administration 
argued to the Court that the right to choose should be limited 
based on foreign precedents. And I think that is an argument 
that is available to attorneys before the Court.
    Mr. Feeney. Should Justices use it? I am not asking what 
lawyers can argue; they ought to argue anything that can win if 
it is ethical. But should Justices use it?
    Ms. Cleveland. In all of these contexts, the question is 
part of a much broader package of issues that the Court has to 
consider regarding the particular constitutional norm that is 
presented.
    So in answering that question, I would say that the Court 
would have to look at what the law that it was confronted with 
was. What it was--how it was being urged to modify Roe, how 
significantly that contradicted our established doctrine and 
precedent; and all of these things would go into the 
consideration of the decision.
    Mr. Feeney. I thank the panelists and yield to the 
Chairman.
    Mr. Chabot. Thank you. The gentleman's time has expired.
    We are not going to another round, but the gentleman from 
New York has asked to ask one additional question, and we have 
granted that right.
    Mr. Nadler. Thank you. I appreciate the indulgence of the 
Chair. I just want to ask Mr. Whelan a question. That remark 
you made just a moment ago raised in my mind--you talk about 
Roe v. Wade and you say it is it is obvious Roe v. Wade is 
wrong, all Americans should acknowledge that Roe is wrongly 
cited and that it was wrong that the American people presumed 
because their legislatures ought to decide on the legality of 
abortions in the States. Is that what you said, essentially?
    Mr. Whelan. That is essentially correct.
    Mr. Nadler. My question is the following: Many people think 
that the real goal of certain legislation such as the--what was 
the bill? I forgot what we call it, the title of the bill to 
recognize that two separate crimes, an assault on a pregnant 
woman with a fetus?
    Mr. Chabot. Will the gentleman yield? The Unborn Victims of 
Violence Act?
    Mr. Nadler. The Unborn Victims of Violence Act, yes.
    That the real goal of that is to establish the fetus' 
personhood and that if you establish the fetus' personhood 
under the 14th amendment, then under the 14th amendment you 
cannot deprive a person of life, liberty or property without 
due process of law; and that if we were to establish that a 
person is a--I'm sorry, that a fetus is a person under the 14th 
amendment, then if Roe were to be overturned, the rationale 
might not be that it is simply wrong.
    In deciding that, therefore, the implication is that State 
legislatures can do what they want one way or the other, but 
that a fetus is a person under the 14th amendment. Therefore, 
you cannot deprive a person of life, liberty or property 
without due process of law; and therefore, no State legislature 
nor Congress may permit abortion under any circumstances 
because that would be a violation of the 14th amendment.
    Are you saying that you would regard that as wrong 
reasoning, or you just didn't think of it when you said that 
getting rid of Roe would enable the States to do what they 
want?
    Mr. Whelan. Well, I certainly follow that. I think the 
reasoning that you attribute to people is clearly not the 
correct reasoning.
    I don't think those who support the Laci Peterson bill are 
interested in some grand concoction of what the word ``person'' 
means in the 14th amendment, nor do I think that anything this 
Congress does statutorily to protect unborn human beings--
beings that are, after all, members of the species Homo sapiens 
from the moment of conception--would have any impact on the 
word ``person'' in the 14th amendment.
    I have testified as to my position that unborn human beings 
are not persons within the meaning of the 14th amendment. And, 
you know, the so-called ``conservative'' approach to the 
abortion issue, those who oppose Roe, recognize merely that the 
issue ought to be restored to the people to decide.
    I think, frankly, with all respect, the rest is scare-
mongering.
    Mr. Nadler. I don't know if it is scare-mongering. It just 
scares me.
    Thank you very much.
    Mr. Chabot. The gentleman yields back.
    In follow-up to the gentleman's point, if I could make one 
point, I think many people believe that all the acrimony that 
has gone on for years relative to the abortion debate, much of 
it could have been avoided had it not been the Supreme Court 
that acted on its own. If this had occurred because the elected 
representatives of the people made this decision one way or the 
other thing, then I think----
    Mr. Nadler. Different States.
    Mr. Chabot. --it would have been much less acrimonious, and 
people would not have felt that the decision was just handed 
down and forced upon us, and that the people had no real input 
on such an important decision in this country.
    So I think that the Supreme Court--and I obviously think 
Roe was wrong and would like to see it overturned; I have never 
made any secret of that I am strongly pro-life, but 
nonetheless, I think that decision was most unfortunate, not 
because of so many lives that----
    The gentleman from Iowa is recognized. I was starting to 
ramble there anyway, so perhaps Mr. King got me off the hook. 
The gentleman from Iowa.
    Mr. King. I thank the Chairman. I will try not to belabor 
this point. I appreciate the privilege of making a quick point.
    It is a question of curiosity, that I would very much like 
to present to Professor Cleveland particularly, because I 
didn't get to you. But it is not the same question, and it is a 
point that I think is a central point here that has not been 
made.
    And that is, the Constitution is a contract that was 
ratified by the several States in roughly 1789 when most of the 
consensus--and that contract is a clearly defined document that 
says, we have an agreement amongst the States, and every State 
that enters the Union signs on to that contract. It is an 
irrevocable contract; and that was resolved by the Civil War 
when Lincoln took that stand.
    And yet today, we have come so far away from the text of 
the Constitution that I would defy any modern-day legal 
scholar, let alone some future historian-archaeologist to try 
to divine the Constitution by reading through whatever mass of 
case law is out there. It seems to me to be impossible, even 
for a strict constructionist court, to work their way back to 
the Constitution given this mass of case law that we have out 
here.
    What is the meaning of the Constitution now, today? Has it 
just been a transitional document that got us to this point in 
history where the judges now run society? Is it an artifact of 
history, Professor Cleveland?
    Ms. Cleveland. I think that is a bigger question than can 
be answered right here. But I think it is important to 
recognize that the Constitution is very sparsely drafted. It 
uses some very general language, deliberately, because it was 
intended to survive through the centuries.
    So the cruel and unusual punishments clause, you know, we 
were talking about the Roper case. The Court is trying to 
figure out how you decide what is ``cruel'' and what is 
``unusual.'' One way you decide what is ``unusual'' is to look 
at what is an uncommon punishment. I don't think that their 
decision in Roper strayed significantly from that text at all. 
I think it was quite honest to it.
    ``Due process,'' similarly, is a concept that is general; 
it changes over time with conceptions of right and wrong. And 
the drafters of the Constitution deliberately wrote a document 
that would have the flexibility to tolerate change in human 
existence.
    Mr. King. Let's take an easy one. Let's talk about Kelo 
where they struck the word ``for public use'' from the fifth 
amendment. That one should be an easy one for us to get some 
consensus on.
    Would you agree that that was a sharp amendment to the 
Constitution that took place with impunity by the Supreme 
Court?
    Ms. Cleveland. I haven't read the case. I would prefer not 
to comment on it.
    Mr. King. Thank you.
    Mr. Chabot. We will make this the last response if we can, 
Mr. King. We won't be having a second or third round here.
    Mr. Whelan. Kelo is a great example of how the left on the 
Court ignores rights that are in the Constitution and makes up 
rights that aren't.
    Mr. King. Thank you, Mr. Chairman, and thank you minority 
party. I yield back.
    Mr. Chabot. We want to thank all the Members for being here 
today. We want to thank especially our panel for their 
excellent testimony in helping us to consider this very 
important issue.
    So if there is no further business to come before the 
Committee, we are adjourned. Thank you.
    [Whereupon, at 6:20 p.m., the Subcommittee was adjourned.]

                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

  Prepared Statement of the Honorable Tom Feeney, a Representative in 
                   Congress from the State of Florida

    Six U.S. Supreme Court Justices--approvingly described as 
``transationalists'' by Yale Law Dean Harold Koh--have increasingly 
expressed disappointment in the Constitution we inherited from the 
Framers and disdain for certain laws enacted by democratically elected 
representatives.
    With disturbing frequency, these Justices have simply imported law 
from foreign jurisdictions, looking for more agreeable laws or 
judgments in the approximately 191 recognized countries in the world.
    They champion this practice and fancy themselves participants in 
some international scene of jurisprudential thought. In recent 
speeches, several Justices have referred to the ``globalization of 
human rights'' and assumed a ``comparative analysis'' when interpreting 
our constitution.
    Mr. Goodlatte, I, and others on this Committee hope to start a 
great civics debate on the constitutionally appropriate role of judges 
in this Republic. This is why we asked Chairman Chabot to conduct 
hearings on this subject.
    If Americans believe that the laws of another nation are superior 
to ours, they bring that idea to the attention of their elected 
representatives and move that policy through the legislative process. 
But if foreign laws are imposed on Americans by five unelected 
Justices, then rule by ``philosopher kings'' has replaced rule by ``We 
the People.'' And we will have forgotten a reason for our nation's 
birth. For in the Declaration of Independence's list of grievances 
against King George III, is: ``He has combined with others to subject 
us to a jurisdiction foreign to our Constitution, and unacknowledged by 
our laws.''
    Despite our country's fierce protection of its sovereignty for over 
200 years, judges at the highest levels of the federal judiciary cannot 
resist rationalizing otherwise baseless interpretations of American law 
by reference and incorporation of international law. The latest example 
is Roper v. Simmons, where the Supreme Court used foreign law to 
determine whether the death penalty for a 17 year old murderer violated 
the Eighth Amendment.
    Justice Kennedy's majority opinion included an extended discussion 
of the relevance of foreign law to interpreting the Eighth Amendment. 
Not limiting himself to international law, Justice Kennedy went further 
to cite international political opinion opposing the death penalty. 
Never mind that back in America, a majority of states with the death 
penalty subject 17 year old murderers to it. Or in my home state of 
Florida, 70% of our voters favored a state constitutional amendment to 
permit such an application of this penalty.
    To support overturning decades of precedent, the Supreme Court 
found it necessary to cite the International Covenant on Civil and 
Political Rights and the United Nations Convention on the Rights of the 
Child. Yet it ignored that the United States has specifically reserved 
the question of the execution of juveniles in signing and ratifying the 
former and has not ratified the latter.
    I've reintroduced the Reaffirmation of American Independence 
Resolution to again stress the sense of the House that international 
influence should be removed from judicial interpretation of our 
Constitution. This resolution states:
    That it is the sense of the House of Representatives that judicial 
interpretations regarding the meaning of the Constitution of the United 
States should not be based in whole or in part on judgments, laws, or 
pronouncements of foreign institutions unless such foreign judgments, 
laws, or pronouncements inform an understanding of the original meaning 
of the Constitution of the United States.
    Despite their high rhetoric, transnationalists are results-oriented 
judges who cherry pick through foreign law and precedent to find 
reasons to overturn the democratically expressed views of their fellow 
citizens. As Judge Posner has noted, this unrestricted citation of non-
United States law ``would mean that any judge wanting a supporting 
citation has only to troll deeply enough in the world's Corpus Juris to 
find it.''
    In a telling irony, a consistent application of such jurisprudence 
would result in strict limitations on abortion and free speech--
anathemas to most if not all transnationalists. Should America rely on 
national laws of say Ireland in determining whether there is a 
constitutional right to abortion? Or follow the lead of Zimbabwe where 
journalists must be licensed by the government?
    Ultimately, transnationalists fundamentally misunderstand their 
country's origins. The American people founded and then repeatedly 
defended this sovereign republic to ensure that they and not some 
outside entity--be it King George III, the European Court of Human 
Rights, or the United Nations--controlled their destiny. Yes, we 
borrowed from other nations' legal traditions, especially the Anglo-
Saxon rule of law. But we always did so through the democratic process 
found in our Constitution. Other countries are free to pursue their 
notions of ``justice.'' That's why so many of our ancestors fled those 
lands to come here.
    The Reaffirmation of American Independence Resolution simply 
confirms that tradition and our nation's sovereignty.

                               __________
Prepared Statement of the Honorable Bob Goodlatte, a Representative in 
                  Congress from the State of Virginia

    Mr. Chairman, thank you for holding this important hearing.
    As you know, recently there has been a deeply disturbing trend in 
American jurisprudence. The Supreme Court, the highest court in the 
land, has begun to look abroad to international law instead of our own 
Constitution as the basis for its decisions.
    Supreme Court Justice Sandra Day O'Connor made a troubling 
prediction last fall that the Supreme Court will rely ``increasingly on 
international and foreign courts in examining domestic issues . . . ,'' 
as opposed to our Constitution, as the basis for its rulings.
    Several western nations have begun to rely upon international 
conventions and U.N. treaties when interpreting their own 
constitutions, which is a frightening prospect, given that most of 
these materials are crafted by bureaucrats and non-governmental 
organizations with virtually no democratic input. The new Supreme Court 
trend to cite these types of foreign authorities is a threat to both 
our nation's sovereignty and the democratic underpinnings of our system 
of government. Our nation's founders were well aware of this danger 
when they drafted the Declaration of Independence, which declares that 
King George had ``combined to subject us to a jurisdiction foreign to 
our constitution and unacknowledged by our laws.''
    The Supreme Court's trend is particularly troubling because it 
comes at a time when the Court is deciding such fundamental issues as 
the very wording of the Pledge of Allegiance, the meaning of the First 
Amendment, and other issues that are uniquely American. Our nation's 
judges, and Supreme Court justices, took an oath to defend and uphold 
the U.S. Constitution--and it is time that Congress remind these 
unelected officials of their sworn duties.
    That is why I joined with my friend and colleague, Congressman Tom 
Feeney, to introduce the Feeney/Goodlatte resolution, which expresses 
the sense of Congress that the Supreme Court should not cite foreign 
authorities when interpreting the U.S. Constitution.
    This resolution sends a clear message that the Congress is not 
willing to simply stand idly by and see our nation's sovereignty 
weakened.
    I believe the judicial branch is guaranteed a very high level of 
independence when it operates within the boundaries of the U.S. 
Constitution. However, when judges and justices begin to operate 
outside of those boundaries, Congress must respond. We must be 
steadfast guardians of the freedoms that are protected in the 
Constitution of the United States of America.
    Thank you again, Mr. Chairman, for holding this important hearing.

       Prepared Statement of Public Citizen's Global Trade Watch



                                 
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